Government's refugee reform bill no longer 'balanced'
The Protecting Canada’s Immigration System Act takes a large and very disappointing step back from a previous “balanced” approach to refugee reform agreed by Parliament in 2010. Amnesty International is deeply concerned that Bill C-31, introduced by the government on February 16, 2012, falls fall short of international legal requirements with respect to human rights and refugee protection. It is also a missed opportunity to correct serious problems with other pending reforms.
Bill C-31, Protecting Canada’s Immigration System Act, violates Canada’s obligations under international law and the Canadian Charter of Rights and Freedoms. The omnibus Bill incorporates the provisions of the former deeply-flawed Bill C-4, proposed legislation to crack down on human smuggling, which makes the detention of “designated foreign nationals” mandatory without access to a review of the grounds of their detention. The Minister can “designate foreign nationals” if the Minister believes they have used a human smuggler to arrive in Canada.
“To mandatorily detain a refugee claimant solely on the basis of their means of arriving in Canada, rather than on an individual assessment of their case, constitutes arbitrary detention,” said Alex Neve, Secretary General of Amnesty International Canada’s English Branch. “That is doubly the case given that detained individuals are denied access to a prompt and independent review of their detention for a full year. It is deeply disappointing that this provision from C-4, in clear violation of Canada’s international human rights obligations, has simply been repeated in Bill C-31.
The Bill also violates Canada’s commitment to uphold the 1951 Refugee Convention and to abide by provisions in the Convention on the Rights of the Child, by not reuniting separated families, including minor children, in a timely manner. Instead the proposed legislation retains Bill C-4’s effective five year bar on the reunification of “designated foreign nationals” with their family members outside of Canada. Designated individuals are also denied the right to appeal of a negative refugee decision.
For years, Amnesty International has called for a meaningful appeal of a negative refugee decision, noting it to be a serious deficiency in Canada’s refugee determination system. The organization therefore welcomed the decision to establish the Refugee Appeal Division within the Immigration and Refugee Board in June 2010 as part of the Balanced Refugee Reform Act.
However, Amnesty International is deeply disappointed that access to this crucial procedural safeguard is being denied many refugee claimants, including the “designated foreign nationals” noted above. Additionally, Bill C-31 removes the right of appeal for claimants arriving in Canada from “Designated Countries of Origin.”
Designated countries of origin are those deemed to be “safe” by the Minister of Citizenship and Immigration. The proposal to deny such individuals access to the refugee appeal process had been earlier proposed but then abandoned by the government at the time the Balanced Refugee Reform Act was adopted in June 2010. At that time Amnesty International highlighted major human rights concerns with the proposal, including:
discriminatory treatment with respect to something as fundamental as access to justice;
the fallacy that countries are “safe” when it comes to human rights protection simply because they are democratic, borne out by extensive reporting from Amnesty International documenting serious human rights concerns in a range of countries with democratically-elected governments; and
- the impossibility of objectively drawing a line between countries that are “safe” and those that are “unsafe.”
Amnesty International is further concerned that Bill C-31 scraps a panel of independent experts who were to advise the Minister on which countries to designate as “safe.” Given how difficult, subjective and contentious the process will be, the involvement of an expert panel would have helped guard against it becoming politicized. Leaving decisions solely in the hands of the Minister, without the involvement of independent experts, substantially increases the risk that decisions will be inappropriately influenced by foreign policy considerations, including trade and investment.
Amnesty International recognizes that governments have a responsibility to protect the integrity of any refugee determination system. Concerns with respect to the abuse of asylum must be balanced with protecting the rights of refugees. Bill C-31 fails to find this balance.
If the Bill is passed, it will result in serious human rights violations and will have devastating consequences for refugees and their family members both in Canada and abroad.
“The violations and shortcomings in Bill C-31 are fundamental and go to the heart of international refugee and human rights principles which Canada has helped to establish,” said Béatrice Vaugrante, Director General of Amnesty International Canada’s francophone branch. “The government should withdraw this deeply flawed Bill and proceed with law reform dealing with refugee protection and human smuggling in a manner that conforms fully with Canada’s international human rights obligations.”
Amnesty International Canada
416-363-9933, ext. 332